Notice regarding a partial reopening of the anti-dumping investigation concerning imports of certain prepared or preserved citrus fruits (namely mandarins etc.) originating in the People’s Republic of China

2011/C 353/10

By its judgment of 17 February 2011 in Case T-122/09 (‘the judgement’) the General Court annulled Council Regulation (EC) No 1355/2008 of 18 December 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain prepared or preserved citrus fruits (namely mandarins etc.) originating in the People’s Republic of China (1) (‘the contested Regulation’) in so far as it concerns Zhejiang Xinshiji Foods Co. Ltd and Hubei Xinshiji Foods Co. Ltd (‘the applicants’).

In April 2011, the Commission lodged an appeal (2) seeking to set aside the judgement. The appeal procedure is still pending.

1.   Partial reopening of the anti-dumping investigation

The General Court, through its judgment, upheld the applicant's complaints alleging infringement of the rights of the defence and failure to state reasons and consequently annulled the contested Regulation. The General Court considered in particular that in the proceeding, leading to the adoption of the contested Regulation, the applicant's rights of the defence were breached and they were not provided with the information necessary for them to determine whether, in the light of the structure of the market, the adjustment as regards the post importation costs taken into account in calculating the price of products originating in China was appropriate. As regards the duty to state reasons the Court considered that the reasons for a measure must appear in the actual body of the measure and may not be stated in written or oral explanations given subsequently when the measure is already the subject of proceedings brought before the European Union Courts.

It is recognised by the Courts (3) that, in cases where a proceeding consists of several administrative steps, the annulment of one of those steps does not annul the complete proceeding. The anti-dumping proceeding is an example of such a multi-step proceeding. Consequently, the annulment of parts of the anti-dumping Regulation imposing definitive measures does not imply the annulment of the entire procedure prior to the adoption of the Regulation in question. On the other hand, according to Article 266 of the Treaty on the Functioning of the European Union, the institutions of the European Union are obliged to comply with the judgment of 17 February 2011 of the General Court. Accordingly, the Union's institutions, in so complying with the judgment, have the possibility to remedy the aspects of the contested Regulation which led to its annulment (4). It must be noted that all other findings made in the contested Regulation, which are not affected as a consequence of the judgment, remain valid.

The Commission has thus decided to partially reopen the anti-dumping investigation concerning imports of certain prepared or preserved citrus fruits (namely mandarins etc.) originating in the People’s Republic of China in order to implement the abovementioned Court judgment as far as Zhejiang Xinshiji Foods Co. Ltd and Hubei Xinshiji Foods Co. Ltd are concerned.

2.   Procedure

Having determined, after consulting the Advisory Committee, that a partial reopening of the anti-dumping investigation is justified, the Commission hereby partially reopens the anti-dumping investigation concerning imports of certain prepared or preserved citrus fruits (namely mandarins etc.) originating in the People’s Republic of China initiated pursuant to Article 5 of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (5) (‘the basic Regulation’) by a notice published in the Official Journal of the European Union  (6).

As stated above, the Commission has lodged an appeal. The appeal is limited to the scope of the operative part of the judgment in so far as it annulled the duty, whereas it was undisputed that the legal flaw in question could only have had a limited impact on the duty level, if any. Therefore, since the appeal does not concern the grounds of the judgement, the Commission is considering whether it would be appropriate to already draw certain consequences from the legal errors identified by the General Court before the Court of Justice rules on the appeal. Moreover, the Commission also will examine whether the legal errors identified by the General Court, and described in the previous paragraph, can already be remedied before the ruling of the Court of Justice.

The reopening is limited in scope to the implementation of the abovementioned judgment as far as Zhejiang Xinshiji Foods Co. Ltd and Hubei Xinshiji Foods Co. Ltd are concerned.

All interested parties are hereby invited to make their views known, submit information and provide supporting evidence. This information and supporting evidence must reach the Commission within the time limit set in point 3(a).

Furthermore, the Commission may hear interested parties, provided that they make a request showing that there are particular reasons why they should be heard. This request must be made within the time limit set in point 3(b).

3.   Time limits

(a)   For parties to make themselves known and to submit information

All interested parties, if their representations are to be taken into account during the investigation, must make themselves known by contacting the Commission, present their views and submit any information within 20 days of the date of publication of this notice in the Official Journal of the European Union, unless otherwise specified. Attention is drawn to the fact that the exercise of most procedural rights set out in the basic Regulation depends on a party making itself known within the aforementioned period.

(b)   Hearings

All interested parties may also apply to be heard by the Commission within the same 20-day time limit.

4.   Written submissions and correspondence

All submissions and requests made by interested parties must be made in writing (not in electronic format, unless otherwise specified) and must indicate the name, address, e-mail address, telephone and fax numbers of the interested party. All written submissions, including the information requested in this notice and correspondence provided by interested parties on a confidential basis shall be labelled as ‘Limited’ (7) and, in accordance with Article 19(2) of the basic Regulation, shall be accompanied by a non-confidential version, which will be labelled ‘For inspection by interested parties’.

Commission address for correspondence:

5.   Non-cooperation

In cases in which any interested party refuses access to or does not provide the necessary information within the time limits, or significantly impedes the investigation, findings, affirmative or negative, may be made in accordance with Article 18 of the basic Regulation, on the basis of the facts available.

Where it is found that any interested party has supplied false or misleading information, the information shall be disregarded and use may be made, in accordance with Article 18 of the basic Regulation, of the facts available. If an interested party does not cooperate or cooperates only partially, and use of facts available is made, the result may be less favourable to that party than if it had cooperated.

6.   Processing of personal data

It is noted that any personal data collected in this investigation will be treated in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Union institutions and bodies and on the free movement of such data (8).

7.   Hearing Officer

It is also noted that if interested parties consider that they are encountering difficulties in the exercise of their rights of defence, they may request the intervention of the Hearing Officer of the Directorate-General for Trade. He acts as an interface between the interested parties and the Commission services, offering, where necessary, mediation on procedural matters affecting the protection of their interests in this proceeding, in particular with regard to issues concerning access to file, confidentiality, extension of time limits and the treatment of written and/or oral submission of views. For further information and contact details interested parties may consult the Hearing Officer's web pages of the website of the Directorate-General for Trade (http://ec.europa.eu/trade).

(1)  OJ L 350, 30.12.2008, p. 35.

(2)  C-195/11 P.

(3)  Case T-2/95 Industrie des poudres sphériques (IPS) v Council (1998) ECR II-3939.

(4)  Case C-458/98 P Industrie des poudres sphériques (IPS) v Council (2000) ECR I-08147.

(5)  OJ L 343, 22.12.2009, p. 51.

(6)  OJ C 246, 20.10.2007, p. 15.

(7)  This means that the document is for internal use only. It is protected pursuant to Article 4 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43). It is a confidential document pursuant to Article 19 of the basic Regulation and Article 6 of the WTO Agreement on Implementation of Article VI of the GATT 1994 (Anti-dumping Agreement).

(8)  OJ L 8, 12.1.2001, p. 1.